H-1B Lottery for Fiscal Year 2010

This year, certain employers may be receiving a boon from the economic downturn.  Each year, employers are permitted to hire temporary foreign workers in specialty occupations under the visa category of H-1B.  The H-1B category is numerically limited to 65,000 (the “cap”), which causes a great deal of anxiety to employers who are seeking to fill needed positions in their companies.  Employers must file beginning on April 1.  In the past, the U.S. Citizenship and Immigration Services (USCIS) would conduct a “lottery” to determine acceptance of applications.  This lottery is conducted by receiving petitions for temporary employees and if the cap is reached within the first five business days, then 65,000 petitions are selected at random for processing. USCIS has confirmed that it will utilize the lottery system this year.  Government regulation also provides that if the cap is not reached in the first five days, USCIS will not conduct a lottery and will process petitions on a first-come, first-serve basis.  While USCIS believes that the cap will be reached before the ultimate deadline of October 1, 2009, it has heard from various stakeholder groups that fewer petitions are expected to be filed during this H-1B season.  The potential here for employers is that the H-1B season will not be conducted by lottery this year, but by first-come, first-serve basis.  In such case, employers should be prepared to file H-1B applications as soon as possible in order to capture this opportunity.  However, it is impossible to accurately predict whether the lottery will be conducted this year because of the difficulty in determining how many applications will be filed.Contact Yan Bennett, Esq. for all your immigration questions and issues.

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